By Judge Judith Gail Dein

Voice of the Judiciary

If you have had any cases in federal court, you have probably been asked at various times by the trial judge if your case is ripe for ADR (alternative dispute resolution), and if not now, when. The Alternative Dispute Resolution Act of 1998 requires that each United States District Court authorize the use of ADR in all civil actions. 28 U.S.C. §§ 651 et seq. In the District of Massachusetts, that means that you will have the option of going to mediation before someone who has contemporaneous experience both as a trial judge and as a mediator. In my mind, this is the best of all worlds (and, as they say, this article expresses only the opinion of its author!). I have had the honor of serving in these dual capacities since shortly after my appointment as a Federal Magistrate Judge in August 2000. While the roles are very different, it has been my experience that what I have learned in one capacity carries over, and makes me even more productive, in the other.

Mediations in the District of Massachusetts presently are conducted by all the Magistrate Judges as well as by Edward Harrington, a Senior District Judge who added mediations to his docket in 2009. Magistrate Judges also have an active role in civil cases filed in Federal Court. Many times we are referred specific pre-trial matters from the District Judge presiding over a case. In addition, we have our own dockets of civil cases over which we preside. With the consent of the parties, Magistrate Judges have the authority pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 to conduct all pre-trial proceedings as well as jury and jury-waived trials in any civil case in Federal Court. This means that we each try a number of civil cases, both jury and jury-waived, each year, ranging from one-day slip and fall cases to multi-week securities litigation, and everything in-between.

When I was appointed to the bench, the ADR program was run by District Judge David A. Mazzone, with the assistance of a panel of volunteer lawyers. Over time, Magistrate Judges were added to the roster of mediators and, with Judge Mazzone’s untimely death in October 2004, the volunteer panel was discontinued and the Magistrate Judges took the lead in conducting mediations. When a case is scheduled for mediation, it is assigned either randomly or in accordance with the parties’ request, if possible. The one caveat is that, except in extraordinary cases, we will not mediate any case in which we are the presiding judge or in which we may be referred pre-trial matters.

There is a real distinction between my role in cases in which I am serving as the mediator, and cases in which I am serving as the presiding judge. As a mediator, I view my role as helping the parties reach a resolution that meets their needs as best as possible. It is my responsibility to help the parties identify the real (sometimes as opposed to the “legal”) issues in dispute, and to help them define what they need to settle a case. It is also my role to help them understand the litigation process, their various alternatives about how best to proceed, and the consequences of certain decisions. I work as a negotiator, talking to each side separately, helping each side to understand that there usually are (at least) two sides to every story, and striving to identify a compromise that everyone can live with to his or her benefit.

So where do the “merits” of a dispute fit into a mediation? And what do the parties mean by the merits? If the parties mean what is “just,” that always fits into a mediation — it is the goal of the mediation to reach a resolution that is as fair as possible to all involved under the circumstances presented. If the parties mean who will prevail at trial, while depending on the case that certainly may be a significant factor in a settlement, it is one that I am loath to predict. As a mediator, I only have the very limited information that is provided to me by counsel and the parties, a snapshot that does not begin to address all the information or law that would be available at trial. Nor do I have any sense of the witnesses, and how the information would be introduced at trial. What I do have is the certainty that if you asked any trial lawyer if they have ever won a case they shouldn’t have won, they will proudly say yes. Of course that makes the inverse true, have they ever lost a case they shouldn’t have lost . . . .

So why does being a trial judge help me be an effective mediator? Obviously, as a trial judge, I do have some very practical experience with the litigation process which I can share with the parties. I also have encountered many of the substantive areas of the law that come before me as a mediator. More importantly, however, I think that as a trial judge I have experience in hearing how things actually sound in a courtroom. A trial is very different than a summary judgment argument, and I can help explore with the parties how their theory of the case may resonate with the fact finder and what they really think they can accomplish in a trial. Finally, and perhaps even most importantly, I bring to the parties in a mediation the assurance that their concerns are being heard and considered by a judicial officer. The setting may not be as formal as a trial, but their side of the story is being considered as seriously.

And why does being a mediator help me be an effective trial judge? On a very basic level, it reminds me continuously what our judicial system is all about. Obviously while presiding over a case the information I have is limited by the rules of evidence, and the dispute, appropriately, is defined by the parameters of the law. I rule on numerous motions as they come before me, and I hear the evidence as presented at trial. Having spent hours talking with the litigants and counsel in mediations, however, I am constantly aware of the people behind the disputes, and why the cases, and my rulings, are so significant. I know why the litigants have sought the assistance of the judicial system in resolving their disputes. Hopefully I will never forget that my role, in any capacity, is to help insure that justice is done.

Judith Gail Dein had over 20 years of civil litigation experience before being appointed as a Magistrate Judge on July 31, 2000. She is a 1976 graduate of Union College, Schenectady, New York, and received her J.D. from Boston College Law School in 1979. In 2011 she received a Community Peacemaker Award from the Community Dispute Settlement Center of Cambridge in recognition of the court’s Mediation Advocates Panel, which provides pro bono representation to pro se civil litigants in mediations.

By Judge Rudolph Kass (ret.)

The Profession

Shortly after taking my seat as an associate justice of the Appeals Court, I received a notice of deposition. The subject concerned the competence of a testatrix whose will signing I had witnessed while still in practice. In doubt how a judge should behave in those circumstances, I consulted the then Chief Justice, Allan M. Hale, a bottomless source of pragmatic wisdom. His instructions were: “Go answer the questions and don’t make any rulings.”

I recalled that episode, which involved a degree of behavior modification, when asked by an editor of this journal what, if anything, I had to impart about my translation from appellate judge to mediator and arbitrator. That role change occurred after I reached the constitutionally mandated retirement age for judges.

An appellate judge comes upon a controversy when it has already gone to an advanced state of development: the parties and their counsel have not resolved their differences – if they have even tried; the case has gone to trial; a jury or judge has found the facts; and one side has won. The record is fixed. Except for the rare instance when a losing party challenges the findings of fact (generally a Sisyphean task), the appellate judge engages in analysis to refine the questions in the case and applies the fruits of legal research, life, and professional experience to produce an opinion of what the law is and, by its application, to decide who wins the case. In that effort, the appellate judge has the comfort of collaboration – and sometimes loyal opposition – of the other judges on the court.

The mediator enters upon a dispute in its nascent stage. With rare exceptions, the case has not been tried, and the appellate judge turned mediator is re-introduced to the certainty paradox that characterizes a trial: that the only certainty about a trial is the uncertainty of the result. At the mediation stage facts are still unsettled. This permits the parties enthusiastically to demonize one another – and they generally do.

Mediation theory holds that the role of the mediator is to help the parties size up their vital interests so that those parties reach an accord. Chances are, however, that when counsel for the parties choose a former judge to be their mediator, they want that mediator to voice some judgment about the strength of the parties’ legal positions. There may be a time for that but one quickly learns that at the beginning of the process, the ex-judge mediator, like the judge-deponent, better not make any rulings. The atmosphere is more favorable to settlement if one side may plausibly argue the world is flat and the other that the world is round. Mediation is a search for the mutually unsatisfactory but acceptable resolution – unsatisfactory in the sense that each party will walk from the mediation with less than that to which it thinks itself entitled but can accept upon reflective assessment of the risk of losing the case, the legal expenses even if victorious, and the disruptive wear and tear that litigation imposes. This is not to say that mediation is unprincipled. The relative claims and defenses are grounded in law and those considerations weigh heavily in resolution of the controversy. The legal answer is not the sole answer. In a particular context it may not be a constructive answer and it is wise, as Professor Austin W. Scott was wont to observe when teaching the law of trusts, to rise above principle: for example, when parties reasonably anticipate a course of mutually beneficial commercial relations ahead of them.

In appellate presentations there is a premium on candor on the part of counsel. Judges will give more weight to arguments from lawyers who are playing straight with the court. In mediation there is theater and posturing as parties make offers and counter offers that they do not seriously expect will be accepted. For the translated judge this takes some getting used to and calls upon the patience reserve. One develops a sense when the dance step converts to real negotiation.

In the comparative calm of the appellate process, the emotional state of the combatants is not a factor. The mediator, by contrast, sees emotion – often it is anger – on display and it is very much a factor that the mediator must strive to understand. The mediator’s response is that anger, however justified, is corrosive and obstructs arriving at a solution to the problem that produced the controversy in the first instance. It is fair to ask when confronted with anger and its twin, an immovable position, what did the party come to mediate? Was it not to solve a problem by a method other than a shoot out?

As the mediation reaches the climactic stage, the ex-judge begins to resume aspects of her/his former role. While still not a decision maker, the mediator becomes more directive, appraises legal positions more definitively, describes worst case scenarios and what the mediator thinks are a party’s vital interests. To the extent that parties are stuck in fixed positions, the mediator may suggest elements of a resolution other than an exchange of money. What does the former judge miss at this juncture? Not sitting one foot higher than everybody else in the room.

The former judge is likely to be conscious of the duty of the trial judge managing the case, if it has reached a judge, to keep the case from stalling or moving sideways. It would be presumptuous for a mediator to suggest how a trial judge should manage scheduling issues but if the parties appear to be getting close to settlement, it may be permissible for the mediator, with the consent of the parties, to so report to the trial judge. That said, the confidentiality statute, G.L. c. 233, §23C, which governs mediation, imposes circumspection on any communication between a mediator and a judge. The window in the wall that separates the mediation room from the courtroom is very small.

Occasionally parties come to mediation after entry of judgment in a trial and with the case on the path to appeal. The circumstances for a mediated settlement are now more difficult because one party has tasted blood and the other is behind the 8-ball. Yet, if the stakes are large, the winning party has an incentive to scale down its recovery in return for certainty; the losing party has an incentive to reduce the dimensions of its loss.

The Court of Appeals for the 1st Circuit screens cases in which mediation may be productive and invites the parties to mediate with a retired judge. Some years ago the Massachusetts Appeals Court experimented with a similar program. The number of cases that settled did not warrant the expense of maintaining the needed space and personnel. Instead, the court consigned cases which might have been candidates for mediation to the tender mercies of a summary disposition panel.

When listening to argument before the Appeals Court, was I ever tempted to inquire whether the parties would like to take a last shot at mediation? Hardly ever. There are cases involving family business disputes, domestic relations issues, neighbor against neighbor quarrels (e.g. about overloading a common driveway easement) where I would think it likely that a victory for one side will only further poison relations between the contending parties. But there they are. The lawyers have briefed the case, they rise to argue. Sometimes parties just need an authoritative decision. A court’s decision is a better way than dueling.

After receiving the LL.B. from Harvard Law School in 1956, Rudolph Kass broke into the practice of law with Jerome L. Rappaport and from 1961, practiced with Brown, Rudnick, Freed & Gesmer, of which he became a partner. In 1978, Governor Dukakis nominated Kass to the Appeals Court, on which Kass served from 1979 through 2003. Following his retirement from the court, he has embarked on a third career as a mediator and sometime arbitrator under the banner of The Mediation Group (www.themediationgroup.org) and REBA Dispute Resolution (www.reba.net), as well as doing other law related odd jobs, such as acting as a master.